Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 11/19/2024 was considered by the examiner.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-9 and 12-15 rejected under 35 U.S.C. 102(a)(1) as being anticipated by Glenn Jr. et al. (US 2019/0328630; of record)
Glenn provides a concentrated hair care conditioning composition comprising:
from about 2-6% a fatty alcohol, such as cetyl alcohol (an C16 alcohol) and stearyl alcohol (an C18 alcohol) (see abstract, claim 1 and [0006, 0007] and Examples; see instant claims 1-3 and 13-14);
from about 1-3% of a cationic surfactant such as behenyl trimethyl ammonium chloride (i.e. behentrimonium chloride) and cetyltrimethyl ammonium chloride (see [0095] and Examples; see instant claim 5; see instant claims 1 and 5) and cationic silicones comprising dimethicone, cyclomethicone and amodimethicone (see [0042, 0058-0061]; see instant claims 1 and 4);
from about 1-2% thickening agents such as cationic polymers, e.g. vinylpyrrolidone (i.e. 1-vinyl-2-pyrrolidone) and dimethylaminoethyl methacrylate copolymers (see [0110]; see instant claim 6), and minerals such as bentonite and magnesium aluminum silicate (see [0109]; see instant claims 1 and 9);
a polyol solvent such as propylene glycol and/or butylene glycol (see [0100]; see instant claim 1), other solvents include lactic acid citric acid, maleic acid and glycolic acid (see [0105]; see instant claims 7-8);
from about 75-95% water (see [0007], Examples and claim 1; see instant claim 1).
Glenn describes their composition as ‘concentrated’ but not in terms of having a level of 2.5 ( or 2.0) as compared to a base, non-concentrated condition composition as required by present claims 12 and 15. However, as the percent composition of the components disclosed by Glenn are the same as those claimed, it is reasonable to conclude that the level of concentration is also the same as the ‘level of concentration’ would presumably be directly tied to the concentration of the mixtures’ components. Moreover, where the claimed and prior art products are identical or substantially identical in composition, said composition must have the same properties, unless shown otherwise. See MPEP 2112.01.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 1-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Glenn Jr. et al. (US 2019/0328630; of record) in view of Cornwell et al. (US 2019/0070087; of record).
Glenn is relied upon for disclosure of claims 1-9 and 12-15 under 35 USC 102(a)(1) and is incorporated herein.
Glenn fails to teach their composition as comprising a hair repair agent such as glucono delta lactone, sodium gluconate, trehalose, sodium sulfate, or a combination thereof.
Cornwell is directed to conditioning hair treatment compositions that comprise hair repair agents such as glucono delta lactone (see [0156] and claim 8) and a disaccharide such as trehalose (see claim 11). It is taught that lactones and disaccharides are useful in repairing hair as they provide protection prior to damage occurring thereby reducing damage from occurring as well as well as providing a repair benefit as well (see [0012, 0014]). Thus, it would have been obvious to modify Glenn’s so as to include lactones and disaccharides with a reasonable expectation for success in imparting hair repair benefit. See MPEP 2143(I)(A) which states combining prior art elements according to known methods to yield predictable results is supportive of obviousness. See also MPEP 2144.06(I).
Therefore, the invention as a whole is prima facie obvious to one of ordinary skill in the art at the time the invention was filed, as evidenced by the references, especially in absence of evidence to the contrary.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
Claims 4, 12 and 15 are rejected under 35 U.S.C. 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claim 4, dependent from claim 1, recites “…wherein the conditioning agent comprises isohexadecane, a silicone, or a combination thereof, wherein the silicone conditioning agent comprises dimethicone, amodimethicone, cyclomethicone, dimethiconol and dimethiconol/silsesquioxane copolymer, or a combination thereof.” However, claim 1 requires the condition agent to be “a cationic surfactant, cationic polymers, or a combination thereof”. None of the conditions agents of claim 4 are ‘cationic’, that is the species enumerated do not have a positive charge. It’s not clear if the silicones of claim 4 are a) part of a larger modified silicone that is cationic, or b) are intended to be non-cationic agents in which case they would be considered not-further limiting of claim 1. Clarification is required. For purposes of examination, the silicones of instant claim 4 are being interpreted as part of a silicone modified to be cationic.
Claims 12 recites, “wherein the concentrated conditioning composition has a level of concentration of 2.5 as compared to a base, non-concentrated conditioning composition.” It is unclear what the level is representing. Is it a ratio of some other non-concentrated compositions ingredients to the claimed composition, or something else? The claims provide no direction as to what the ‘level of concentration’ embodies and so there is no clear way of understanding what is being claimed. Clarification is required. Claim 15 is rejected for similar reasons.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 15 is rejected under 35 U.S.C. 112(d) as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claim 15, dependent from claim 12, recites, “…wherein the level of concentration is 2.0.” However, claim 12 requires the level of concentration be 2.5. Claim 12 does not contemplate a range encompassing 2.0, e.g. “a level of concentration up to 2.5”. Thus, claim 15 is improper as it does not further limit the claim from which it depends.
Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KYLE A PURDY whose telephone number is (571)270-3504. The examiner can normally be reached from 9AM to 5PM.
If attempts to reach the examiner by telephone are unsuccessful, the examiner's supervisor, Bethany Barham, can be reached on 571-272-6175. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/KYLE A PURDY/Primary Examiner, Art Unit 1611
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